Tuesday, November 10, 2009

In the previous posting in this series we discovered that the current push for "Personhood Amendments" in a number of states is a necessary and salutary effort in the struggle to restore the social order to something more conformable to the principles of the natural law, and thus to human nature. The problem is that there are groups that seem determined to remake humanity in their own image, and force their vision onto everyone else, using the coercive power of the State to accomplish this end.

Part of the problem with reorienting people's thinking is the fixed idea many people have that the State can do anything, or (more accurately) that we can use the State to gain whatever ends we desire, and that the individual is helpless in the face of unjust social structures. This is an extremely naïve view not only of the role of the State and of the place of the person in the State, but also of the power that the State and the law actually have to change attitudes and behavior, that which constitutional scholar Albert Venn Dicey, noted for his emphasis on the "rule of law," (1835-1922) called "public opinion."

As Dicey pointed out in his landmark study on the sociology of law, the less-than-snappily-titled if extremely erudite and profound (and out of print, except for what reviewers have called an overpriced and very bad edition) Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century (1905), the effectiveness of any law depends on how the public receives it. That is, how "public opinion" agrees with and perceives a particular law affects the understanding and interpretation of that law and other institutions, as well as its enforcement.

Dicey's book, by the way, is an excellent accompaniment to Alexis de Tocqueville's sociological analysis, Democracy in America (Volume I, 1835; Volume II, 1840). Not surprisingly, both de Tocqueville and Dicey were great admirers of the United States. Both, however, pinpointed possible dangers in the American system that have, in large measure, made serious inroads on the natural rights of life, liberty, property, and pursuit of happiness, the protection of which presumably constitutes the chief reason and justification for the United States. For de Tocqueville, the danger lay in false notions of equality, while for Dicey the concern was the corruption he saw inherent in party politics.

Dicey's conclusion was that if people are prepared to accept a new law, there is a high likelihood that the law will be obeyed and have the intended result. If, however, people are not prepared to accept a new law, then there is a high likelihood that the law will not be obeyed, or will have effects sometimes the exact opposite of what was intended. The best examples of the latter case in the United States are the Fugitive Slave Act of 1850 and Prohibition, both of which were widely disobeyed and actually advanced the activities they were intended to counter.

In social justice, of course, the primary power to change and reform our institutions rests not with the State, but with individual people. This, however, can be misunderstood as a statement of individualism or anarchy. On the contrary, as Rev. William J. Ferree, S.M., Ph.D., makes clear in Introduction to Social Justice, ordinary, everyday people have the power to act directly on the common good. The common good is the network of institutions within which we as human persons exercise our natural rights and thereby acquire and develop virtue.

It is not, however, as individuals per se that we have the power to act directly on the institutions of the common good, including our laws, customs, and traditions, but as members of organized groups — who remain, at the same time, fully differentiated individuals within the organized structure of an institution. As Edmund Burke declared in Thoughts on the Cause of Present Discontents (1770): "When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle." (Burke did not say, "All that is necessary for evil to triumph is for good men to do nothing," an individualistic rephrasing of the more socially-just approach Burke described.)

This, the apparent paradox of social justice, explains how we can retain our individual identity and human dignity, and at the same time, act in accordance with our political nature — as Aristotle reminds us, "man is by nature a political animal." That still leaves us, however, with the problem of protecting each person's essential human dignity in the face of such egregious misunderstanding and misinterpretation of basic principles of the natural moral law and the United States Constitution as exemplified by Roe v. Wade.

If, as we have seen, public opinion appears to be ranged against any limitations on the presumed right to an abortion (as if any right could ever be exercised without any kind of limitation on its exercise), how do we, as seemingly helpless individuals, organize and change public opinion so that public opinion no longer regards abortion as a right, and that a law making abortion illegal — if it would even be necessary at that point — would be effective instead of destructive of the social order?

In the next posting in this series we will begin to examine one possibility that appears to have the potential to satisfy all competing claims in this issue, at least those that base (or attempt to base) their positions on reason and rule of law.